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Articles 1 - 16 of 16
Full-Text Articles in Law
Trading Nonenforcement, Ryan Snyder
Trading Nonenforcement, Ryan Snyder
Faculty Publications
In recent years, federal agencies have increasingly used nonenforcement as a bargaining chip—promising not to enforce a legal requirement in exchange for a regulated party’s promise to do something else that the law doesn’t require. This Article takes an in-depth look at how these nonenforcement trades work, why agencies and regulated parties make them, and the effects they have on social policy. The Article argues that these trades pose serious risks: Agencies often use trading to evade procedural and substantive limits on their power. The trades themselves present fairness problems, both because they tend to reward large, well-connected firms and …
Divide & Concur: Separate Opinions & Legal Change, Thomas B. Bennett, Barry Friedman, Andrew D. Martin, Susan Navarro Smelcer
Divide & Concur: Separate Opinions & Legal Change, Thomas B. Bennett, Barry Friedman, Andrew D. Martin, Susan Navarro Smelcer
Faculty Publications
To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions is off the mark? In this article, we argue for the importance of concurring opinions, demonstrating how they serve as the pulse and compass of legal change. Concurring opinions let us know what is happening below the surface of the law, thereby encouraging litigants to push the law in particular directions. This is particularly true …
The Transformative Twelfth Amendment, Joshua D. Hawley
The Transformative Twelfth Amendment, Joshua D. Hawley
Faculty Publications
This paper argues that the Twelfth Amendment represents far more than a mechanical adjustment of the electoral college. Rather, it is the constitutional text that gives us the political presidency that we know today. The Twelfth Amendment worked a major structural change in the relationship between the legislative and executive branches and for that reason bears directly on the debate over the unitary executive and the meaning of “executive power.” Specifically, presidential removal power is best justified not by the original Article II, but by the constitutional structure the Twelfth Amendment created. And the scope and definition of executive power …
A New Framework For Assessing Clinical Data Transparency Initiatives, Erika Lietzan
A New Framework For Assessing Clinical Data Transparency Initiatives, Erika Lietzan
Faculty Publications
Biopharmaceutical companies submit vast amounts of clinical data and analysis to support approval of their medicines, expecting the information to be kept confidential, as has been the practice of regulators around the world for decades. Over the last ten years, however, pressure has been mounting for regulators or industry to release this information. Legal scholars have generally taken the view that no relevant doctrines or bodies of law preclude the release of this material and that public policy considerations compel its release. This article argues that the scholarship to date has overlooked key considerations: the special issues presented by operation …
Tinkering With The Machinery Of Life, Ben L. Trachtenberg
Tinkering With The Machinery Of Life, Ben L. Trachtenberg
Faculty Publications
Recent adjustments by the Environmental Protection Agency (EPA) and the Department of Transportation (DOT) to their cost–benefit analysis procedures could cause tremendous changes to federal regulation. For decades, federal agencies have calculated the value of a statistical life (VSL) and have used that number when evaluating the costs and benefits of proposed regulations. If a regulation was expected to save lives, the number of lives saved could be multiplied by the VSL to monetize the benefits. Because, however, lives saved in the future were given the same nominal value as lives saved in the present, the real value of future …
Thoughts On Preemption In The Wake Of The Levine Decision, Erika Lietzan, Sarah E. Pitlyk
Thoughts On Preemption In The Wake Of The Levine Decision, Erika Lietzan, Sarah E. Pitlyk
Faculty Publications
This article discusses the prospects for preemption doctrine in the wake of the Supreme Court’s decision in Wyeth v. Levine. Part I describes the Levine decision. Part II examines the majority’s holding as it relates to impossibility preemption and considers the future of the doctrine in failure-to-warn suits after Levine. We argue that the announced standard for impossibility preemption — the clear evidence standard — should be interpreted reasonably and not in a manner that effectively eviscerates the doctrine. We also describe other instances of impossibility in the food and drug regulatory context that were not presented to the Court. …
"National Security" Information And The Freedom Of Information Act, Christina E. Wells
"National Security" Information And The Freedom Of Information Act, Christina E. Wells
Faculty Publications
Secrecy regarding national security information is a widely accepted phenomenon. Throughout history, however, such secrecy has proved problematic. Although officials often have credible and legitimate reasons to keep national security information secret, government secrecy initiatives have invariably expanded to encompass information beyond their initial rationale. Over time, we have come to realize the very real problems associated with excessive government secrecy.
The Role Of The Federal Magistrate Judge In Civil Justice Reform, R. Lawrence Dessem
The Role Of The Federal Magistrate Judge In Civil Justice Reform, R. Lawrence Dessem
Faculty Publications
This Article considers the role of the United States magistrate judge in civil justice reform and, more specifically, the role that the early implementation districts envision for magistrate judges within their own districts. Part I briefly considers the evolution of the office of magistrate judge prior to the enactment of the Judicial Improvements Act of 1990. Part II addresses the treatment of magistrate judges under that legislation. Next, Part III recounts the roles assigned to magistrate judges under the Civil Justice Reform Act in the individual district courts. These varying uses of magistrate judges then will be critiqued in Part …
Judicial Reporting Under The Civil Justice Reform Act: Look, Mom, No Cases!, R. Lawrence Dessem
Judicial Reporting Under The Civil Justice Reform Act: Look, Mom, No Cases!, R. Lawrence Dessem
Faculty Publications
This article addresses the new reporting provision of the Civil Justice Reform Act. Part II analyzes the reporting requirement and the requirement's legislative history. Part III describes the implementation of the requirement by the federal judiciary, while Part IV discusses the initial reports filed pursuant to the provision and the media coverage of those reports. Part V next analyzes the wisdom of the reporting requirement, concluding that, on balance, the requirement may be helpful in furthering public accountability of an independent federal judiciary. Part VI then considers what the data now publicly reported under the Civil Justice Reform Act does, …
Legislative Veto Of Administrative Rules In Missouri: A Constitutional Virus, Kenneth D. Dean
Legislative Veto Of Administrative Rules In Missouri: A Constitutional Virus, Kenneth D. Dean
Faculty Publications
The purpose of this Article is to examine the constitutionality of the legislative veto as it exists in Missouri, specifically the powers of the JCAR. Part II of the Article traces the history of the JCAR and the various types of powers given to it. Part III of the Article examines the experiences of the United States government and other states to determine their applicability to Missouri. Part IV examines the various grants of power to determine whether they comply with the Missouri constitution.
Federal And State Water Quality Regulation And Law In Missouri, Peter N. Davis
Federal And State Water Quality Regulation And Law In Missouri, Peter N. Davis
Faculty Publications
This article discusses that law in two parts. The first part examines the federal and Missouri waste discharge regulatory system. The second part analyzes common law rights and remedies related to water pollution.
Personal Jurisdiction After Asahi: The Other (International) Shoe Drops, R. Lawrence Dessem
Personal Jurisdiction After Asahi: The Other (International) Shoe Drops, R. Lawrence Dessem
Faculty Publications
This articles analyzes the growth and development of the doctrine of personal jurisdiction and the Supreme Court's consideration and application of that doctrine in the recent case of Asahi Metal Industry Co. v. Superior Court. Asahi is significant both because of the nature of the suit and the nationality of the third-party defendant. The Supreme Court for the first time directly addressed the constitutionality of the ‘stream of commerce’ doctrine of personal jurisdiction, a jurisdictional theory that has been employed increasingly in recent years in products liability actions. Asahi also is one of the few cases in which the Court …
Congressional Standing To Sue: Whose Vote Is This, Anyway?, R. Lawrence Dessem
Congressional Standing To Sue: Whose Vote Is This, Anyway?, R. Lawrence Dessem
Faculty Publications
The article is divided into three major sections. Section I traces the development of a separate doctrine of “congressional standing.” It examines the doctrine's development from the Supreme Court's initial consideration of legislative standing through the current opinions of the United States Court of Appeals for the District of Columbia Circuit. Section II then analyzes three possible theories of congressional injury and standing. Derivative, representative, and third-party standing theories are all rejected as a basis for congressional standing. While rejecting the suggestion that congressmen possess a personal interest in “their” votes sufficient to constitute the “distinct and palpable injury” required …
State Ownership Of Beds Of Inland Waters - A Summary And Reexamination, Peter N. Davis
State Ownership Of Beds Of Inland Waters - A Summary And Reexamination, Peter N. Davis
Faculty Publications
This article will summarize the basic structure of bed title law and will examine its current status under the recent Supreme Court decisions. It will then analyze the cases to determine the location of title of beds of federally nonnavigable inland waters when a state created from a federal territory asserts such title.
Board Of Curators Of The University Of Missouri V. Horowitz: Academic Versus Judicial Expertise, R. Lawrence Dessem
Board Of Curators Of The University Of Missouri V. Horowitz: Academic Versus Judicial Expertise, R. Lawrence Dessem
Faculty Publications
In Board of Curators of the University of Missouri v. Horowitz' the United States Supreme Court rejected the argument that public university students are constitutionally entitled to a hearing prior to their dismissal from school for academic reasons. In ruling against a former medical student at the University of Missouri-Kansas City, the Court concluded that "the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking. ' In this article that conclusion and the several opinions in Horowitz will be …
Student Due Process Rights In Academic Dismissals From The Public Schools, R. Lawrence Dessem
Student Due Process Rights In Academic Dismissals From The Public Schools, R. Lawrence Dessem
Faculty Publications
This article, however, goes beyond the argument that education is one of the most valuable benefits which government in this country provides. The thesis of the article is that education is not only very important to millions of Americans, but that students have constitutionally protected liberty and property interests in their public educations and the courts should therefore require notice and hearing prior to the deprivation of these interests, even when the deprivation is for strictly academic reasons.